REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1617 of 2014

SHIO SHANKAR DUBEY & ORS.           ...APPELLANT(S)  

VERSUS

STATE OF BIHAR  ...RESPONDENT(S)  

J U D G M E N T ASHOK BHUSHAN,J.

This  appeal  has  been  filed  by  the  three

appellants challenging the judgment of High Court of

Patna dated 16.07.2013, by which Criminal Appeal (DB)

No.  410  of  1990  filed  by  them  questioning  their

conviction and sentence under Section 302 and some

other sections of I.P.C. has been dismissed.  

2. The prosecution case is that on 16.05.1980, one

Raj Ballam Rai, informant alongwith his brother Raj

Keshwar Singh came to Sasaram Court.  After finishing

his  work  in  court  informant  proceeded  with  his

brother  to  his  residence  near  Dharamshala.   Raj

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Keshwar Singh was on rickshaw and the informant was

on the bicycle.  Raj Keshwar Singh was armed with a

double barell gun. The further case is that at about

9:00 am when they reached 50 to 60 yards east of

Kargahar  More,  the  informant  saw  that  Doodnath

Dusadh, Jamadar Dusadh and Ram Nandan Dusadh stopped

the rickshaw.  They were armed with Lohbanda.  Shio

Shankar Dubey was armed with Rifle and his brother

Ram Pravesh Dubey was armed with lathi and they were

also alongwith them.  They pulled down Raj Keshwar

Singh  from  rickshaw  and  started  assaulting  with

Lohbanda.  The Mukhiya that is Shio Shankar Dubey

asked them to kill in a hurry.  The informant fled

away.   Shio  Shankar  Dubey  opened  fire  but  none

received any injury.  The accused persons thereafter

fled away towards south.  

3. At  9:30  am,  the  police  official  namely,  S.N.

Singh of Sasaram Police Station arrived at the place

of  occurrence  to  whom  Raj  Ballam  Rai  gave  a

fardbeyan.  On the basis of fardbeyan given at the

place of occurrence by informant, First Information

Report was registered against 05 accused.   2

4. The prosecution, to prove its case, produced 15

witnesses.   PW11,  informant,  fully  supported  the

prosecution case.  PW13, Ragho Ram Singh, who was

also an eyewitness, supported the prosecution case.

PW5 was another eyewitness, who saw 04 of the accused

running away from the spot.  Formal witnesses were

also  produced  by  the  prosecution.   On  the  spot

seizure  was  also  made  by  one  Siddhanath  Singh,

Inspector  of  Police,  which  seizure  also  contained

copy  of  four  applications,  which  were  typed  at

District Court, Sasaram and were being carried by the

deceased alongwith him in a diary, which applications

were marked as Ext.3/2 to 3/5.

5. Inquest  Report  was  also  prepared  on  the  spot.

Body was sent for post mortem.  Post mortem report

was prepared as Ext.4.  One defence witness, DW1,

Dasrath  Ram  was  also  produced,  who  brought  the

register of the employees for the period 1961 to 1963

containing  the  signatures  of  deceased  Raj  Keshwar

Singh.   

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6. The trial court vide its judgment and order dated

14.09.1990 convicted 04 accused, (one of the accused

namely,  Doodnath  Dusadh  having  died  during  the

pendency of trial.  The appellant No.1 – Shio Shankar

Dubey, accused No.3, was convicted for the offence

under Sections 302/149/148 I.P.C. and Section 27 of

the  Arms  Act.   The  appellant  No.2  –  Ram  Pravesh

Dubey, accused No.4, was convicted for the offence

under  Sections  302/149/147  I.P.C.   The  third

appellant,  i.e.,  Jamadar  Dusadh,  accused  No.1  was

convicted under Sections 302/147 and 379 I.P.C.  Four

accused, who were convicted filed criminal appeal in

the  High  court,  which  has  been  dismissed.   One

Ramnandan Dusadh also having died during pendency of

the appeal before the High Court, the three surviving

accused are in the appeal before this Court.

7. Learned counsel for the appellant in support of

the  appeal  submits  that  PW11  –  informant  being

brother of the appellant and PW13 being husband of

the niece of the deceased were all close relatives

and interested witnesses, the Courts below committed

an error in relying on the testimony of interested

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witnesses.   There  being  no  independent  witnesses

corroborating the charge against the appellants the

appellants  ought  not  to  have  been  convicted  and

sentenced.  It is further submitted that PW5, who

claimed to be an eyewitness and deposed before the

courts below that he saw four accused running away

from  the  spot,  he  has  not  taken  the  name  of  Ram

Pravesh Dubey, the appellant No.2.  PW5 having not

taken the name of Ram Pravesh Dubey, the presence of

Ram Pravesh Dubey on the spot is not proved and the

Courts below have ignored this evidence.  Ram Pravesh

Dubey having not been proved to be on the spot, could

not have been convicted.  It is further submitted

that inquest report mentioned a bullet injury whereas

in  the  post  mortem  report,  no  bullet  injury  was

found.  There being no bullet injury found in the

post mortem report, the entire prosecution theory is

inconsistent.   Learned  counsel  for  the  appellant

further  submits  that  there  was  no  motive  for

appellants to kill Raj Keshwar Singh.   

8. Learned counsel appearing for the State refuting

the  submissions  of  the  learned  counsel  for  the

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appellant  submits  that  informant  PW11  was

accompanying the deceased and his evidence was found

trustworthy.   The  Courts  below  did  not  commit  an

error in relying on his evidence.  It is submitted

that the mere fact that PW11 and PW13 are related to

the deceased does not in any manner impeach their

truthfulness.  It is submitted that the mention of

the bullet injury in the inquest report was due to

error  of  judgment  by  the  person  writing  inquest

report.   The  skull  being  crushed  in  a  manner  and

bones  being  fractured,  impression  was  drawn  that

bullet entered from behind the skull and came out of

the mouth, which in no manner can be said to be fatal

to the prosecution case.  It is submitted that PW5 is

a  trustworthy  witness,  who  is  not  related  to  the

deceased and saw the accused running away from the

spot.

9. We have considered the submissions of the learned

counsel for the parties and have perused the records.

10. PW11, who is a brother of the deceased, has fully

corroborated  the  prosecution  case  in  his  evidence.

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In spite of thorough cross-examination, the witnesses

could not be shaken.  The submission of the appellant

that witnesses PW11 and PW13 being related to the

deceased are interested witnesses and should not be

relied  does  not  commend  us.   The  mere  fact  that

deceased was brother of the informant and PW13 is the

husband of the niece of the deceased and does not

impeach their evidence in any manner.  The mere fact

that witness is related does not lead to inference

that such witness is an interested witness.  This

Court  has  occasion  to  consider  such  submission  in

number  of  cases.   In  Kartik  Malhar  Vs.  State  of

Bihar, (1996) 1 SCC 614, this Court held that a close

relative  who  is  a  very  natural  witness  cannot  be

regarded as an interested witness.  In paragraph Nos.

15 and 16, following was laid down:-  

“15. As to the contention raised on behalf of the appellant that the witness was the widow of the deceased and was, therefore, highly  interested  and  her  statement  be discarded,  we  may  observe  that  a  close relative who is a natural witness cannot be regarded as an interested witness. The term ‘interested’  postulates  that  the  witness must  have  some  direct  interest  in  having the accused somehow or the other convicted for some animus or for some other reason. In  Dalbir Kaur (Mst) v.  State of Punjab,

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(1976) 4 SCC 158, it has been observed as under: (SCC pp. 167-68, para 11)

“Moreover, a close relative who is a very  natural  witness  cannot  be regarded  as  an  interested  witness. The term ‘interested’ postulates that the person concerned must have some direct  interest  in  seeing  that  the accused  person  is  somehow  or  the other convicted either because he had some animus with the accused or for some other reason. Such is not the case here.”

16. In Dalip Singh v. State of Punjab, AIR 1953 SC 364 it has laid down as under:

“A  witness  is  normally  to  be considered independent unless he or she  springs  from  sources  which  are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to  wish  to  implicate  him  falsely. Ordinarily, a close relative would be the last to screen the real culprit and  falsely  implicate  an  innocent person. It is true, when feelings run high and there is personal cause for enmity,  that  there  is  tendency  to drag  in  an  innocent  person  against whom  a  witness  has  a  grudge  along with the guilty, but foundation must be laid for such a criticism and the mere  fact  of  relationship  far  from being a foundation is often a sure guarantee of truth. However, we are not  attempting  any  sweeping generalisation.  Each  case  must  be judged  on  its  own  facts.  Our observations are only made to combat what is so often put forward in cases before  us  as  a  general  rule  of

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prudence.  There  is  no  such  general rule. Each case must be limited to and be governed by its own facts.”

11. Further  in  Namdeo  Vs.  State  of  Maharashtra,

(2007) 14 SCC 150, same propositions were reiterated

by this court elaborately referring to the earlier

judgments, this Court rejected the same submission in

paragraph  Nos.  29,  30  and  38,  which  are  to  the

following effect:-

“29. It was then contended that the only eyewitness, PW 6 Sopan was none other than the son of the deceased. He was, therefore, “highly  interested”  witness  and  his deposition should, therefore, be discarded as it has not been corroborated in material particulars  by  other  witnesses.  We  are unable  to  uphold  the  contention.  In  our judgment, a witness who is a relative of the deceased or victim of a crime cannot be characterised  as  “interested”.  The  term “interested”  postulates  that  the  witness has some direct or indirect “interest” in having  the  accused  somehow  or  the  other convicted due to animus or for some other oblique motive.

30. Before  more  than  half  a  century,  in Dalip Singh v. State of Punjab, AIR 1953 SC 364, a  similar  question  came  up  for consideration  before  this  Court.  In  that case,  the  High  Court  observed  that testimony  of  two  eyewitnesses  required corroboration  since  they  were  closely related to the deceased. Commenting on the approach of the High Court, this Court held that  it  was  “unable  to  concur”  with  the

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said view. Referring to an earlier decision in  Rameshwar  Kalyan  Singh v.  State  of Rajasthan, AIR 1952 SC 54, Their Lordships observed that it was a fallacy common to many  criminal  cases  and  in  spite  of endeavours  to  dispel,  “it  unfortunately still persists, if not in the judgments of the courts, at any rate in the arguments of counsel”  (Dalip  Singh  case,  AIR  p.  366, para 25).

38. From the above case law, it is clear that  a  close  relative  cannot  be characterised  as  an  “interested”  witness. He  is  a  “natural”  witness.  His  evidence, however, must be scrutinised carefully. If on such scrutiny, his evidence is found to be  intrinsically  reliable,  inherently probable and wholly trustworthy, conviction can  be  based  on  the  “sole”  testimony  of such witness. Close relationship of witness with the deceased or victim is no ground to reject his evidence. On the contrary, close relative of the deceased would normally be most  reluctant  to  spare  the  real  culprit and falsely implicate an innocent one.”

12. We, thus, reject the submission of the appellant

that PW11 and PW13 being related to deceased, their

evidence cannot be relied.   

13. Now, the next submission of the learned counsel

for the appellant that PW5, who is held to be an

eyewitness has in his statement only taken names of

the four accused, who, according to him, were seen

running away from the spot.  It is submitted that PW5

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did  not  take  the  name  of  Ram  Pravesh  Dubey,  the

appellant  No.2.   The  statement  of  PW5  has  been

brought on the record.  PW5 in his statement stated

that at 9 O’clock in the morning, he had gone to

Sasaram and when he went about fifty steps south to

Rouza Road from G.T. Road, he saw the accused persons

namely  Ram  Nandan  Dusadh,  Dudnath  Dusadh,  Jamadar

Dusadh and Shankar Dubey fleeing on Rouza Road going

from the west to the east.  It is true that in his

statement, he mentioned names of only four persons,

who were seen fleeing on Rouza Road.  The mere fact

that he did not mention name of Ram Pravesh Dubey

cannot lead to the inference that Ram Pravesh Dubey

was  not  involved  in  the  incident.   There  may  be

several reasons due to which, he could not see Ram

Pravesh Dubey.  When PW11 and PW13, whose evidence

has been relied by the trial court as well as High

Court, have categorically proved the presence of Ram

Pravesh  Dubey  and  his  participation  in  the

occurrence.  The mere fact that PW5 did not see Ram

Pravesh Dubey fleeing is not conclusive nor on that

basis, we can come to any inference that Ram Pravesh

Dubey was not involved in the occurrence.     11

14. Now, we come to the another submission of the

appellants  that  in  the  inquest  report,  it  was

mentioned that pellet from back in the head has come

out  of  the  mouth,  but  there  was  no  bullet  injury

found in the post mortem report.  In column No.5 of

the inquest report brought as Annexure-P42, following

was stated:-

“It appears that the pellet from back in the  head  has  come  out  of  the  mouth. (illegible) part has been cut.  The brow on the eyes are (illegible).  Left elbow has bruise injury.  Left had has also bruise injury. Lacerated.”

15. We may further notice other details given in the

inquest  report  in  column  No.4,  following  was

noticed:-

“Head in north-east direction, leg in south direction,  felt  facing  upward,  the  back portion of the head heavily damaged, both the eye closed.  Eye has blackened.  Injury in mouth also.  Blood is oozing from the mouth  also.”

16. Now, we come to the post mortem report.  Post

mortem report has been extracted by the High Court in

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paragraph  No.12  of  the  judgment.   The  injuries

noticed in paragraph No.12 are as follows:-

“12. XXXXXXXXXXXXXXXXXXXXXX

(i) Lacerated wound 2" X 1" with commuted fracture  of  occipital  bone  in  two multiple pieces at back of head. Some fragments  of  bone  had  pierced  into brain covering. There was collection of blood  clot  outside  and  inside durameter.  Corresponding  part  of  the brain  was  found  softened  and  with lacerated  injury.  There  was  no blackening  of  margin  of  surrounding area or no tatooing.

(ii)  Bruise  4"  X  2"  in  front  of  face involving right eye brow, right malar bone and bridge of nose with multiple fracture  of  right  mallar  bone,  nosal bone and right maxilla.

(iii) Bruise 2" x 1" left and below the nose with fracture of left maxilla and lacerated cut of cheek from inside 1" X 1/2".

(iv) Abrasion 1" x ½" of upper lip right to mid-line.

(v) Lacerated cut ½" x ½" left margin of tongue with blood clot in the mouth.

(vi) Abrasion ½" x ½" at left knee.

(vii) Abrasion 1" x ½" at left forearm.

Injury  Nos.  (i),  (ii)  and  (iii)  are grievous  in  nature  caused  by  hard  blunt substance, may be lathi and Lohbanda.

Injury Nos. (iv), (v), (vi), (vii) are simple  in  nature,  caused  by  hard  blunt

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substance, may be lathi and Lohbanda. Time elapsed since death within 12 hours.

XXXXXXXXXXXXXXXXXX”

17. A  perusal  of  the  injuries,  which  have  been

noticed  in  the  post  mortem  report  indicates  that

there was fracture of occipital bone in two multiple

pieces at back of the head.  Some fragments of bone

had pierced into brain covering.  Multiple fracture

of right mallar bone, nosal bone and right maxilla

has also been noticed.  The nature of the injuries,

which were found in the post mortem report indicates

that on seeing the injuries, the officers recording

the inquest report thought that since occipital bone

in  two  multiple  pieces  at  back  of  head  have  been

fractured and some fragments of bone had pierced into

brain covering, the bullet entered from the back side

of  the  head  and  came  out  of  the  mouth,  which  is

noticed in the inquest report and the officer writing

the inquest report made his opinion by seeing the

injury  by  bare  eyes.  The  nature  of  injuries

especially  injury  in  the  back  of  head  led  him  to

believe that bullet entered from back of the head and

came out of the mouth.  The above impression recorded 14

in  the  inquest  report  was  only  opinion  of  person

preparing  inquest  report  and  due  to  the  above

impression  recorded  in  the  inquest  report  and  no

bullet having been found in the post mortem report,

it cannot be concluded that incident did not happen

in  a  manner  as  claimed  by  the  prosecution.   The

mention of bullet injury was only an opinion of the

officer writing the inquest report and in no manner

belies the prosecution case as proved by eyewitnesses

PW11 and PW13.   

18.  Learned counsel for the appellant has further

contended that there was no motive proved.  PW11 in

his statement clearly mentioned that as his nephew

had  contested  election  against  the  accused  Shio

Shankar Dubey for the post of Mukhiya, due to which

Shio  Shankar  Dubey  was  angry  with  his  deceased

brother.   In  paragraph  No.5  of  the  statement,

following has been stated:-

“5. Accused  Shiv  Shankar  Dubey  was  the Mukhiya  of  my  Gram  Panchayat  Gotpar Khatadihri at the time of occurrence.  My nephew  Ram  Bachan  Singh  had  contested election against the accused Shio Shankar Dubey for the post of Mukhiya.  This is why

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Shio  Shankar  Dubey  was  angry  with  my deceased  brother  and  all  the  accused jointly  murdered  him.   Bikram  Dusadh  had been jailed three to four days earlier to this occurrence.  He was full brother of the  accused  namely  Dudnath  Dusadh  and Jamadaar Dusadh and son of the accused Ram Nandan Dusadh.  The accused were suspicious of the fact that my deceased brother had got him jailed.”

19.  In  paragraph  No.58,  the  trial  court  has

discussed about the motive and it held that motive

for  the  occurrence  has  been  proved  from  the  oral

evidence of PW11 and Ext. 5 and Ext.5/1.   

20. There is one more fact, which needs to be noted

in the present case. The occurrence is of 9.00 AM on

16.05.1980 and within half an hour of the occurrence,

police officials from Police Station, Sasaram arrived

on the spot, a fardbeyan of the informant, PW11 was

recorded on the spot itself by the police officials.

At  9.30  AM,  the  fardbeyan  has  been  proved.   The

inquest report and the seizure report were provided

at 10.00 AM and 10.15 AM respectively on the spot.

FIR was sent to the court on 17.05.1980.  Trial court

has noticed the entire sequence of the events and has

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rightly  come  to  the  conclusion  that  there  was  no

opportunity  for  the  informant  to  implicate  other

leaving the real culprits.  In paragraph Nos. 72, 73

and 74, the trial court records following:-

“72. The salient feature of the present case is that the occurrence took place at 9 a.m.  on  16-5-80.   The  Fardbeyan  was recorded  at  9-30  a.m.  at  the  place  of occurrence.   The  inquest  report  and  the seizure list was prepared at 10 a.m. and 10.15 a.m. respectively at the spot.  The postmortem  was  done  on  the  same  day  at 12.10  p.m.   These  facts  are  proved  from ext.6 (Fardbeyan) Ext. 7 (inquest report), Ext.8 (seizure list) and Ext. 4 (postmortem report).

73. The F.I.R. was sent to the court on 17- 5-80.  Admittedly, it was morning court and the court closes at 12 noon. So the F.I.R. was  sent  on  17-5-80  in  the  earliest possible  time.   One  accused  was  also arrested  and  sent  to  custody  on  17-5-80. This fact is proved from the order sheet of the lower court dated 17-5-80 which is the first order sheet in this case before lower court.  

74. From the facts mentioned in the above para  there  was  no  opportunity  for  the informant  to  implicate  other  leaving  the real culprit.  Sot this cannot be a case of false implication.”    

21. The prosecution case in the present case being

fully  proved  against  the  accused,  the  eyewitness

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account of PW11, who was accompanying the deceased

has  given  the  eyewitness  account  of  the  entire

incident.  The names of all the five accused and role

attributed to them have been promptly recorded by the

police officials within half an hour of the incident

on the spot.  The medical evidence corroborates the

ocular  evidence.   Both  the  Courts  below  have  not

committed any error in convicting the appellants and

sentencing them.  We do not find any error in the

judgment of courts below.  There is no merit in the

appeal.  The appeal is dismissed.  

......................J.                              ( ASHOK BHUSHAN )

......................J.                              ( K.M. JOSEPH )

New Delhi,  May  09, 2019.        

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